Depetris Family, LLC v. Medford Twp. Zoning Bd. of Adjustment

• Decision Date: 21 April 2020
• Docket Number: DOCKET NO. A-6009-17T1
• Parties: DEPETRIS FAMILY, LLC, Plaintiff-Respondent, v. MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

DEPETRIS FAMILY, LLC, Plaintiff-Respondent, v. MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.

DOCKET NO. A-6009-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 16, 2020

April 21, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1938-17.

Platt & Riso, PC, attorneys for appellant (Christopher J. Norman, on the briefs).

Hyland Levin Shapiro LLP, attorneys for respondent (Robert Baranowski, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, defendant Medford Township Zoning Board of Adjustment (the Board) appeals from an August 9, 2018 judgment in favor of plaintiff Depetris Family, LLC, reversing the Board's denial of plaintiff's variance application and remanding to the Board for further proceedings. We reverse and uphold the Board's denial of the use variance application.

Plaintiff owns real property, known as the Village at Taunton Forge Shopping Center (the Center), in the Township of Medford, located in the Community Commercial Zoning District (CC Zone). In 2014, the Board approved plaintiff's plan to redevelop the Center, including permission for a coffee shop. Plaintiff instead proposed opening a Dunkin' Donuts with a drive-through; however, the CC Zone prohibits fast food restaurants, including drive-through food establishments. Plaintiff therefore applied for a use variance and site plan approval.

The Board held hearings over the course of three days between March 2017 and July 2017. Plaintiff's representatives, and Dunkin' Donuts's representatives, testified in support of the application. Board members, who were familiar with the local conditions, expressed concern about how the proposed drive-through would impact traffic. The Board reviewed a traffic study, which confirmed that the average time needed to make a left turn out ofthe Center and onto Tuckerton Road during morning peak traffic was 78.2 seconds per vehicle, and that with the addition of the drive-through, typically three to four vehicles would queue while waiting to make that left turn. Thus, drivers may wait several minutes before being able to exit the Center. The study also considered an alternative, more circuitous exit route, which would require an average time of 37.8 seconds per turn. At the end of the hearings, the Board denied the application.

The Board premised the application's denial on its conclusion that the drive-through would be an ineffective and unsafe egress from the shopping center for left turns onto Tuckerton Road between 7:00 a.m. and 9:00 a.m. It relied on Price Co. v. Zoning Board of Adjustment of Union, 279 N.J. Super. 327, 334 (Law Div. 1993) (stating that Board members could reject expert testimony and rely on their own knowledge of traffic conditions), aff'd o.b., 279 N.J. Super. 207 (App. Div. 1994).

On appeal, the Board raises the following points for this court's consideration:

POINT I

THE ZONING BOARD'S DENIAL OF THE REQUESTED USE VARIANCE WAS REASONABLY MADE AND SUPPORTED BY EVIDENCE IN THE RECORD BELOW.

In its reply brief, the Board raises the following additional points, which we have renumbered:

A. The Zoning Board Reasonably Relied Upon The Traffic Gap Study Finding Of A 78.2 Second Delay For Left-Turns Onto Tuckerton Road To Justify Its Denial Of The Use Variance.

B. The Zoning Board's Denial Of Use Variance Approval Was Not Based Upon Any Misinformation Or Misunderstanding.

C. The Zoning Board Did Not Discriminate Against Respondent's Dunkin['] Donut[s] Application, Compared To Other Coffee Shops With Drive-[Throughs] Granted Use Variance Approval In Other CC Zoning Districts of Medford Township.

D. The Zoning Board's Approval Of Drive-[Throughs] For A Bank And Rite Aid Pharmacy At Respondent's Shopping Center Is Not Dispositive Because Those Uses Are Not AM Peak Uses.

E. The 2015 Site Plan Approval For A Coffee Shop At Respondent's Shopping Center Without Drive-[Through] Is Not Dispositive, Because The Board Reasonably Concluded That Coffee Shops With Drive-[Throughs] Generate Higher Customer Trips.

F. The Zoning Board Engineer Provided The Zoning Board With Relevant Evidence Of A Traffic Gap Study Concluding That a 78.2 Second Delay Would Exist For Left-Turns Onto Tuckerton Road And Allowed The Board Members To Reach Their Own Conclusions As[To] Whether Such Condition Was Unacceptably Inefficient Or Unsafe.

G. The Zoning Board Members' Collective Decision Is Set Forth In Its Resolution Of Denial.

Our standard of review is well settled. "We have long recognized that zoning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)). A local board's decision "enjoy[s] a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. A court "should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, a zoning board is vested with the power "[i]n particular cases for special reasons, [to] grant a variance to allow departure from regulations . . . to permit . . . a use or principal structure in a district restricted against such use or principal structure[.]" N.J.S.A. 40:55D-70(d). "No variance or other relief may be granted . . . without a showing that such variance or other relief can begranted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Ibid.

The Board contends that it reasonably relied on the traffic study in concluding that plaintiff's use variance application should be denied. "A planning board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site." Dunkin' Donuts of N.J., Inc. v. Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513, 515 (App. Div. 1984) (citation omitted). "[T]he authority to prohibit or limit uses generating traffic into already congested streets or streets with a high rate of accidents is an exercise of the zoning power vested in the municipal governing body." Ibid. (citation omitted); see also El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 329 (App. Div. 1991) (indicating that "it was entirely proper for the [b]oard to consider the accessibility to and from the development onto . . . a heavily travelled state highway").

In Price Co., the judge announced that, in considering whether to grant a use variance application, a zoning board has a right to consider existing traffic conditions and the impact that the proposed use would have on those conditions. 279 N.J. Super. at 334. The judge noted that the board had a rightto rely on "their own peculiar knowledge of traffic conditions" in rejecting the application for the use variance. Ibid.

Here, the Board denied plaintiff's application based on comprehensive traffic reports and personal knowledge of traffic conditions in making their decision. It found that "the 78.2-second delay time for left-turn movements by each vehicle creates a potentially hazardous condition for impatient or inexperienced motor vehicle operators." At best, this drive-through Dunkin' Donuts would result in inefficient traffic circulation at peak hours, and at worst it would result in unsafe traffic conditions. Cf. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 166 (1992) (holding that a board should consider whether the use variance grant "would cause a substantial detriment to the public good").

The Board members used their own knowledge and experience in considering the existing traffic conditions around the Center. See Price Co., 279 N.J. Super. at 334. The Board emphasized that the roads are "heavily trafficked," especially during peak morning hours. In its decision, the Board explicitly stated it considered the submitted expert opinions in determining whether to grant the use variance. Based on those opinions, as well as personal considerations, the Board determined that the use variance should not be granted.

The Board asserts, and we agree, that it did not rely upon any "misinformation or misunderstanding" or facts to support its denial of the use variance application. Plaintiff argues that the Board "erroneously asserted that the study was conducted over the Easter break," and therefore traffic was "down significantly" that day. Although one Board member initially believed that the study was conducted during the local school's Easter break, the Board's engineer stated that the Board member was incorrect and that school was in session on the day the study was conducted. Additionally, the Board's chairperson reiterated that the Board member was incorrect, and the mistaken Board member himself then admitted that the school was on Easter break the following week. We therefore reject plaintiff's assertion that the entire Board was mistaken. The Board member corrected himself and recanted his statement. As plaintiff notes, the Board members were aware of the incorrect statement before making their ultimate determination.

The Board argues that it reasonably denied this use variance application—despite approving applications for other coffee shops with drive-throughs—because...